Bryn Mawr Classical Review 97.10.14

Reviewed by Kevin Crotty.

The plea of insanity to exculpate the criminal defendant is one of the
most sensational and troubling features of the criminal justice system.
In 1982, for example, John W. Hinckley, Jr. was acquitted of thirteen criminal
counts arising from his attempted assassination of the then president Ronald
Reagan. The outcome shocked many, as though something were fundamentally
amiss with the criminal legal system. More recently, Lyle and Eric Menendez,
charged with murdering their parents, defended on the grounds that they
had been the victims of prolonged parental abuse. Two juries were hopelessly
deadlocked. Their inability to reach a decision suggested some deep confusion
about the nature of responsibility in general, the scope of legal responsibility
in particular, and the pertinence of psychological "expertise"
in assessing legal guilt.

In Wild Beasts and Idle Humours: The Insanity Defense from
Antiquity to the Present, Daniel Robinson, a professor or psychology
at Georgetown University, seeks to situate the insanity defense within
its historical framework, and in the course of doing so, "to trace
the major terms of an ongoing dialogue between legal and extralegal conceptions
of human nature" (3). He argues, essentially, that the insanity defense
should come into play only where there is reason to think that the accused
is simply incapable of understanding what law is about, and, in particular,
unable to appreciate that what he was doing was wrong.

Robinson's position is close to the well known "M'Naghten Rule,"
promulgated in 1843 by the British House of Lords, and the prevailing standard
used in courts up to this day. Its tendency is to make the legal issue
of insanity less a clinical question for mental health experts, and more
a rough-and-ready determination for lay juries whether it is fair to hold
this or that particular defendant responsible. For that reason, the M'Naghten
Rule has sometimes seemed antiquated and crude, failing to keep abreast
of the vaunted "advances" by psychiatry in identifying the springs
of human conduct.

Robinson's book amounts to a defense of the M'Naghten Rule. The province
of the law courts should be kept separate from psychiatry, he argues: criminal
law is not improved by trying to trace the "causes" of any given
act. The legal determination of insanity, he writes, has less to do with
etiology -- the effective causes of a defendant's acts -- than with such
non-technical,
essentially ethical matters as intention and accountability. Robinson pleas
for less reliance on experts in criminal trials, and less concern with
establishing the ultimate sources or springs of human conduct.

Wild Beasts and Idle Humours will not be of particular
interest to classicists. Despite its sub-title (The Insanity Defense
from Antiquity to the Present), Robinson has next to nothing
to say about the insanity defense in antiquity. This is hardly surprising,
since the defense makes only a fitful appearance in ancient literature
-- as
for example in the ninth book of Plato's Laws, where
he writes that insanity should be exculpatory to a certain degree. To be
sure, insanity was a factor in testamentary law, but there it was used
more as a sword (to throw out an apparently valid will), than as a shield
(to defend against criminal charges). Robinson, in fact is not offering
a history of the insanity defense in antiquity; rather, he uses the ancients
as part of his brief against the excessive reliance on experts in modern
insanity defense cases.

In his first chapter, entitled "Furiosi," Robinson cites some
of the Hippocratic writings as evidence that Greek medicine had achieved
notable progress in a scientific understanding of madness. Yet such progress
did not result in the use of medical experts in criminal trials to testify
concerning the accused's mental state and its etiology. The ancients' interest
in insanity, rather, was confined to deciding whether the individual in
question was capable of making those discriminations between right and
wrong on which any legal system is premised. Athenian and Roman legal systems
alike, Robinson writes, confined themselves to a non-technical, layperson's
determination of whether it was fair to hold particular persons to that
accountability that law itself seems to presuppose.

The ability of fellow citizens to make this determination without guidance
from experts stemmed in part, Robinson argues, from a pervasive sense of
"fitness" or harmonia in the ancient world,
and, in particular, a sense of the individual's inclusion within an orderly
whole -- indeed, several orderly wholes, the household, the clan, the
city.
A determination of insanity, then, was tantamount to adjudging an individual's
lack of "fitness" -- specifically, his unsuitability for civic
and legal responsibility.

Robinson seems to be advocating that modern courts adapt something like
the untechnical approach used in ancient ones. It is surprising, therefore,
that he does not address the serious injustices marring those ancient conceptions
of the social order which, on his argument, enabled courts to determine
insanity in a nontheoretical way. Robinson alludes to the lack of legal
standing of women and slaves, but writes, rather blandly, that "[i]t
was more important to preserve the hierarchic organization -- even in
the
face of injustices -- than to tamper with the natural order of things
merely
to serve the narrow interests of this or that woman, this or that slave,
this or that infant." (43)

Robinson fails to ask whether the background conditions that made it
possible for ancient courts to do without medical expertise exist nowadays.
American law, for example, tends to construe the person as an autonomous
individual. Legally speaking, we are nowadays all in the situation that
Homer once described: "clanless, lawless, hearthless" (Il.
9.6) -- uprooted from containing wholes, and skeptical concerning them.
Although
Homer saw this state as accursed, excellent reasons exist for construing
individuals this way, at least for legal purposes. Moderns can perhaps
better appreciate the injustice of the clans and hearths that denied the
autonomy of women and those unfortunates who had been reduced to slavery.
Robinson's failure to explore this problem in any detail must weaken his
implicit argument that ancient practice may serve as a guide to modern
courts.

In this regard, it is unfortunate that Robinson does not cite Bernard
Williams' Shame and Necessity, which offers a rich and
nuanced discussion of Greek (especially archaic Greek) conceptions of responsibility,
and their suggestiveness for modern understandings of the self. Robinson
nowhere cites Dodds' Greeks and the Irrational, and
Bennett Simon's Mind and Madness in Ancient Greece receives
only the most fleeting notice. Thus, he scarcely does justice to the mythic,
poetic, and philosophical aspects of madness in Greek thought.

More important, Robinson has an uncertain grasp on ancient views of
responsibility. He opens his discussion, for example, by asserting that
Agamemnon's apology in Iliad 19 is the first appearance
of the insanity defense. This is misleading, for, as Dodds long ago pointed
out, Agamemnon is not attempting to exculpate himself. "It was not
I who was the cause [aitios]," Agamemnon says, "but Zeus and
Fate and Erinys that roams in the mists who sent wild atê
on me in the
forum" (Il. 19.86-88). the view of self reflected
in Agamemnon's apology is subtly different from modern views, and, in particular,
views the self as far more "permeable" -- more open to outside
influences -- without any sense, however, that this permeability
exonerates
the one who has injured another. Had Robinson gotten a better hold of the
complexities in Agamemnon's apology, he might have found it a useful corrective
for modern legal views of the self. As Robinson points out, modern courts
sometimes lose the notion of individual responsibility in tracing out the
multiple influences that condition individual conduct. The conception of
the self reflected in Agamemnon's apology is attractive partly because
it acknowledges the individual's open-ness to circumstances, without diminishing
the sense of responsibility for one's acts.

Robinson is on firmer ground when dealing with the period from 1800
to the present. Those interested in a brief and readable account of the
history of the insanity defense over the last two hundred years may find
the last two chapters of Robinson's book engaging and stimulating.